5 Sunset Park Holdings, LLC v Brito

[*1] 5 Sunset Park Holdings, LLC v Brito 2012 NY Slip Op 50406(U) Decided on March 5, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-118 K C.

5 Sunset Park Holdings, LLC, Appellant,

against

Eridania Santos Brito, Respondent, -and- "JOHN DOE" and "JOHN DOE," Undertenants.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Laurie Lynne Lau, J.), entered March 10, 2010. The final judgment, after a nonjury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this holdover summary proceeding based on tenant's allegedly unauthorized alterations to her apartment and her use of a washing machine. Paragraph 7 of the original lease states that "Tenant must obtain Landlord's prior written consent to install any paneling, flooring, built in' decorations, partitions, railings, or make alterations or to paint or wallpaper the Apartment. Tenant must not change the plumbing." It is uncontroverted that tenant made the subject alterations to her apartment without the written consent of her current or [*2]former landlord. At issue on appeal is whether the requirement of written consent was waived.

In general, a party to a written agreement may orally waive enforcement of one of its terms, and such "[w]aiver may be demonstrated by words or conduct, including full or partial performance and equitable estoppel" (see Taylor v Blaylock & Partners, 240 AD2d 289, 290 [1997]). The evidence adduced at trial supports the Civil Court's determination that the alterations in question took place prior to the purchase of the building by the current landlord and that the former landlord had waived the lease's requirement of written consent for alterations, and had orally consented to the alterations (see Taylor v Blaylock & Partners, 240 AD2d at 290). We note that the trial court, which was in a position to assess the evidence and the credibility of the witnesses (see Koslowski v Koslowski, 297 AD2d 784, 785 [2002]), concluded that tenant's witnesses, who testified that the former landlord orally agreed to allow tenant to make alterations to the apartment as long as the work was supervised by the former superintendent, were more credible than landlords witness, the current superintendent, who testified that the alterations had taken place while he was employed by the current landlord. The court specifically indicated that the current superintendent's testimony was insufficient to rebut tenant's evidence. In addition, the evidence supports the conclusion that tenant did not use a washing machine in violation of paragraph 6 of the lease.

Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 05, 2012